Caroline Francis v Brent Housing Partnership Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Beatson,Lord Justice Laws |
| Judgment Date | 29 July 2013 |
| Neutral Citation | [2013] EWCA Civ 912 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2012/0763 |
| Date | 29 July 2013 |
[2013] EWCA Civ 912
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Moloney QC
Claim No: ICL02029
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Rimer
and
Lord Justice Beatson
Case No: B5/2012/0763
Mr Jan Luba QC and Ms Gillian Ackland-Vincent (instructed by Edwards Duthie Solicitors) for the Appellant
Mr Ranjit Bhose QC and Mr Simon D. Butler (instructed by Mr Ash Vyas, Brent Housing Partnership Limited) for the First and Second Respondents
Mr Adrian Davis (instructed by Guile Nicholas) for the Third Respondent
Introduction
The claimant/appellant, Caroline Francis, started these proceedings in the High Court of Justice, Queen's Bench Division, on 15 February 2010. She asserted in them that she was a tenant of a flat at 25C Stonebridge Park, London NW10 ('No 25C') and that the second defendant/respondent, the London Borough of Brent ('Brent') was her landlord. The first defendant/respondent, Brent Housing Partnership Limited, is Brent's managing agent to which there is no further need to make separate reference.
Brent owns the freehold of No 25C and there is no dispute that Ms Francis occupied it from June 1981 to about 22 May 2005. In order to enable Brent to carry out necessary repairs to No 25C, Ms Francis then assumed temporary occupation of a flat at 1 Kingthorpe, Stonebridge, London NW10 ('No 1') under an agreement with Brent made on 18 May 2005. On the face of it, that agreement entitled her to return to No 25C when the works were completed. Her complaint is that during her occupation of No 1, Brent let No 25C to the third defendant/respondent, Vinette Williams. By her claim, she sought an order for possession of No 25C, injunctions directed at enabling her to resume undisturbed possession of it, and damages against all defendants.
The proceedings were transferred to Central London County Court, which directed the trial of a preliminary issue, namely whether Ms Francis was a tenant of No 25C. That issue was tried before His Honour Judge Moloney QC. The outcome of his extempore judgment of 8 March 2012 was: (i) an order dated 12 March 2012 determining that Ms Francis had a secure tenancy of No 1 but no tenancy of No 25C; and (ii) an order of 28 March 2012 requiring her to pay the defendants' costs, subject to section 11 of the Access to Justice Act 1999. Judge Moloney refused permission to appeal, but Lewison LJ granted it.
The issue is whether the judge was right or wrong in holding that Ms Francis had no tenancy of No 25C. Jan Luba QC (who did not appear below) and Gillian Ackland-Vincent (who did) represented Ms Francis. Ranjit Bhose QC (who did not appear below) and Simon Butler (who did) represented the first two respondents. Adrian Davis represented Vinette Williams in both courts, and before us he simply adopted the arguments advanced by Mr Bhose. It was not suggested to us that Ms Williams's involvement in the litigation was and is other than that of an innocent third party who became enmeshed in a dispute that arose primarily between Ms Francis and Brent.
To understand the issues, I must first tell the story.
The facts
By a written agreement of 26 May 1981, Brent granted Ms Francis a secure tenancy of No 25C commencing on 1 June 1981. She then occupied No 25C with her two young sons, Nathan and Marcus. Under section 79 of the Housing Act 1985:
'A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied'.
As the interest of the landlord in relation to No 25C at all times belonged to Brent, a local authority, 'the landlord condition' was unquestionably satisfied. As for 'the tenant condition', section 81 provides, so far as material, that:
'The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; …'.
There is no dispute that down to 18 April 1991 Ms Francis was a tenant of No 25C and that she occupied it as her 'only or principal home'. She was therefore a secure tenant of No 25C. There is also no dispute that from 18 April 1991 to about 22 May 2005, when she moved to No 1, she continued to occupy No 25C as her 'only or principal home'. There is, however, a question as to whether during that latter period she was ever a tenant of No 25C.
That question arises because, on 21 March 1991, the Willesden County Court made an outright order for possession of No 25C against Ms Francis on the ground that arrears of rent had accrued. The court ordered her to give possession on 18 April 1991 and judgment was entered against her for £2,733.26 arrears and £150 costs. Under the then law (that is, prior to the changes to the Housing Act 1985 introduced by Section 299 of, and Schedule 11 to, the Housing and Regeneration Act 2008), the effect of that order was to terminate Ms Francis's secure tenancy on 18 April 1991. In fact, with Brent's consent, she remained in occupation of No 25C and continued to pay the equivalent of rent (and what she paid was also referred to as 'rent') and to make payments towards reducing the arrears. Subject to the events of May 2005, it is not, however, disputed that her continued occupation of No 25C was not as a tenant but as what was then known as a 'tolerated trespasser'.
A summary of the events from 18 April 1991 to May 2005 is as follows. Brent sought to enforce the possession order in May 1992. In September 1992, Ms Francis applied for a stay of execution, of which the outcome was that Brent's warrant for possession was suspended and a stay granted on terms that Ms Francis paid weekly instalments of £5.00 off her arrears in addition to her current rent. That meant that she had to pay a total of £8.56 every week.
By 30 July 1996, Ms Francis's arrears were £1,802.46 and, by 7 January 1998, £3,346.11. Brent obtained another possession warrant but on 6 April 1998, on Ms Francis's application, District Judge Morris suspended it until further order. Ms Francis managed to reduce the arrears. Moving on two years, on 31 January 2000 District Judge Steel suspended a further possession warrant on condition that Ms Francis paid the current weekly rent of £20.48 plus instalments of £7.12 per week off the arrears of £1,899.33. According to a letter of 1 March 2001 to Brent from the Mary Ward Legal Centre, Ms Francis was ordered by a further order of 30 January 2001 to pay the current rent plus £7.12 per week towards her arrears. The Centre proposed a variation to the terms of the order, under which she was to maintain payment of the current rent plus £2.66 per week. That led to an agreement with Brent under which she was to pay the current weekly rent plus £2.70 per week off the arrears. By 28 January 2002, her rent account with Brent was in credit, as it thereafter usually remained, until 12 April 2004 after which it continued to be in debit.
By the end of 2004, Brent had decided No 25C was in need of repair. It was this that led to Ms Francis's move to No 1. Brent wrote to her on 9 November 2004 advising her that she would have to move whilst they carried out the work. They advised her that it would take 'approximately 5 days at which time you will return to your home'. That forecast proved to be an underestimate by about five years. The progress of the matter took more time and on 19 April 2005 Brent wrote further to Ms Francis advising her on the practical steps she needed to take in relation to the move to No 1 and enclosing a disturbance payment claim form.
The need for Ms Francis to make that move led to the signing on 18 May 2005 by Brent and Ms Francis of the 'decant agreement' that is at the heart of the issues. I must set it out almost in full.
The decant agreement
The decant agreement is described at the top of its first page by a legend reading 'temporary secure tenancy agreement while works are carried out to tenant's permanent accommodation'. It was made between Brent (described as the Council) and Ms Francis (described as 'the Tenant' and whose address was given as No 25C). The definitions section defined: (i) 'permanent accommodation' as No 25C; (ii) 'the secure agreement' as meaning 'a secure tenancy agreement dated 01 June 1980 … in respect of No 25C', which the judge found (and as to which no question arises) was a mistaken reference to Ms Francis's secure tenancy agreement of 26 May 1981; (iii) 'the temporary accommodation' as meaning No 1; (iv) 'the agreement' as meaning 'this agreement for a temporary weekly periodic secure tenancy of the temporary accommodation'; and (v) 'the commencement date' as being 24 May 2005. The recitals were as follows:
'2.1 [Brent] is required to perform works to the Tenant's permanent accommodation which is let to the Tenant by [Brent] pursuant to the secure agreement.
2.2 [Brent] has agreed to make available the temporary accommodation for the Tenant's occupation while [Brent] performs the works to the permanent accommodation.
2.3 On completion of the works to the permanent accommodation the Tenant will give up occupation of the temporary accommodation and resume occupation of the permanent accommodation.'
The material operative parts of the agreement were as follows:
' Now the Parties Hereby Agree and Declare
3. The agreement will commence on the commencement date and will terminate:
3.1 28 days...
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